US v. Gotti, CR-90-1051.

• Decision Date: 09 January 1991
• Docket Number: No. CR-90-1051.,CR-90-1051.
• Citation: 755 F. Supp. 1157
• Parties: UNITED STATES of America, Plaintiff, v. John GOTTI, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

755 F. Supp. 1157

UNITED STATES of America, Plaintiff, v. John GOTTI, et al., Defendants.

No. CR-90-1051.

United States District Court, E.D. New York.

January 9, 1991.

John Gleeson, Asst. U.S. Atty., Brooklyn, N.Y. and Arthur N. Eisenberg, New York Civ. Liberties Union, New York City, for plaintiff.

Bruce Cutler, New York City, for Gotti.

David Greenfield, New York City, for Locascio.

Gerald Shargel, New York City, for Gravano.

Michael Rosen, New York City, for Gambino.

MEMORANDUM AND ORDER

GLASSER, District Judge:

The New York Civil Liberties Union ("NYCLU") requested this court, at approximately 4:00 p.m. on January 8, 1991, to issue an order directing counsel for the parties in this case to show cause on January 9, 1991 at 4:30 p.m., why this court should not also issue an order permitting it to file an accompanying memorandum of law as amicus curiae in connection with the defendants' motion seeking pretrial release or, in the alternative, an order modifying the conditions of their pretrial confinement. The order to show cause it requested the court to issue would have provided that answering papers be served upon the NYCLU on or before 3:00 p.m. on the 8th of January which it is assumed was intended to read the 9th of January.

This court is not aware of any rule or statute that prescribes the procedure for obtaining leave to file an amicus brief in the district court nor is this court aware of any rule or statute which furnishes standards to guide the court in determining whether leave to file an amicus brief should be granted.

Rule 29 of the Rules of Appellate Procedure makes explicit provision for the filing of an amicus brief. It provides:

Rule 29. Brief of an Amicus Curiae

A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable.

If guidance were to be sought from that Rule the request to file such brief here would be denied. Not only was the brief not accompanied by the written consent of either party, but the motion for leave to file one fails to state any reason why an amicus brief is desirable beyond stating that several constitutional provisions are implicated by the issues raised by the defendants' motion.

Judicial commentary on the role of amicus curiae may be found in Alexander v. Hall, 64 F.R.D. 152 (D.S.C.1974). The phrase amicus curiae means, literally, "friend of the court," serving for the benefit of the court and for the purpose of assisting the court in cases of general public interest. The literal translation of the phrase does not always accurately translate in fact. The court in Strasser v. Doorley, 432 F.2d 567 (1st Cir.1970) observed, at page 569, that "by the nature of things an amicus is not normally impartial" and went on to add in footnote 2 on that page: "As an attorney of an acquaintance once told the court, when asked for his response to the argument of the amicus `That fellow isn't any more a friend of the court than I am.'" Other functions served by amicus curiae are to provide supplementary assistance to existing counsel and insuring a complete and plenary presentation of difficult issues so that the court may reach a proper decision. Since an amicus is not a party to the litigation, but participates only to assist the court, the extent to which, if at all, an amicus should be permitted to participate lies solely within the discretion of the court. 64 F.R.D. at 155.

The court is deeply troubled, however, by another aspect of this request to file an amicus brief. The order to show cause was submitted to the court for signature in chambers during a brief recess of a jury trial. Unfortunately, a court reporter was not present to record the colloquy between the court and counsel for the NYCLU, which, in essence, was as follows: The court asked why it was necessary to be burdened by an additional submission when the defendants were represented by competent counsel (who, it should be added, filed an excellent memorandum of law in...